The rule of the unattachability of the family homestead, provided for in Law 8,009/90, also covers properties in the process of acquisition, such as those subject to a commitment to purchase and sale or to financing for housing purposes, under penalty of preventing the debtor from acquiring the asset necessary for the housing of their family group.
Based on this understanding, the Third Panel of the Superior Court of Justice (STJ) ordered the return of the case to the Court of Justice of São Paulo (TJSP) so that the court may analyze the presence of the other legal requirements for the recognition of a property under fiduciary alienation as a family homestead. The São Paulo court had dismissed the allegation of unattachability of the asset, but the ruling was reformed unanimously by the panel.
See also:
TJ-SP prevents the rescission of a property financed through fiduciary alienation
The special appeal originated from an objection to pre-enforceability (exceção de pré-executividade) presented under the allegation of the party’s lack of standing to promote the enforcement of the instruments, in addition to the impossibility of attaching the rights over the family homestead.
The objection was rejected by the trial court judge, who understood that it is possible to attach a property given under fiduciary alienation, since, if the debtor himself nominates the property to guarantee the obligation assumed, he cannot consider it unattachable.
The TJSP upheld the decision, concluding that the attachment did not fall upon the ownership of the property, but only upon the obligational rights that the debtor holds in relation to it, with the fiduciary creditor’s dominion over the asset remaining secured.
Extension of the protection
The reporting justice of the debtor’s special appeal, Justice Villas Bôas Cueva, pointed to case law of the STJ in the sense of the impossibility of attaching the asset alienated fiduciarily in an enforcement promoted by third parties against the fiduciary debtor, given that the assets belong to the fiduciary creditor. However, he stated that the attachment of the rights arising from the fiduciary alienation contract is permitted.
“Nevertheless, the case at hand differs from the cases already examined by this Superior Court because it is founded on the possibility, or not, of extending any protection given to the statutory family homestead to the right that the fiduciary debtor holds over the property alienated fiduciarily and used for their housing,” the justice said.
Family homestead
Villas Bôas Cueva emphasized that, for the application of the rule of unattachability of the family homestead, it is required, as a rule, that the ownership belong to the couple or to the family entity, since Law 8,009/90 uses the term “own residential property.” Consequently, if the property subject to the constraint belongs to a third party who is not a member of the family group, the legal protection could not, in theory, be invoked.
According to the reporting justice, the definition that best represents the legal objective consists in understanding that the expression “own residential property” encompasses possession arising from a contract entered into for the purpose of transferring ownership, such as a commitment to purchase and sale or financing of a property for housing purposes.
“In the case, it is a contract of fiduciary alienation as security, in which, upon full settlement of the debt, the fiduciary debtor will consolidate ownership for himself (Article 25, caput, of Law 9,514/97). Thus, there being the expectation of the acquisition of dominion, the rule of unattachability must prevail,” concluded the justice in ordering the return of the case records to the TJSP.
Source: STJ
← Back to blog